McBride v. Burgin

• Decision Date: 26 April 1926
• Docket Number: 25584
• Citation: 142 Miss. 859,108 So. 148
• Court: Mississippi Supreme Court
• Parties: MCBRIDE, et al. v. BURGIN. [*]

108 So. 148

142 Miss. 859

MCBRIDE, et al. v. BURGIN. ^[*]

No. 25584

Supreme Court of Mississippi

April 26, 1926

Division A

1. LIMITATION OF ACTIONS.

Legislature may extend or shorten period of any statute of limitation as in its judgment it deems best.

2 MORTGAGES. Trustee's deed to purchaser showing on its face that sale was made after it was tarred by statute of limitations held valid, where marginal reference was made within six months showing renewal of original indebtedness (Code 1906, sections 2796, 3093, 3097; Hemingway's Code sections 2297, 2457, 2461).

Under Code 1906, section 2796 (Hemingway's Code, section 2297) trustee's deed to purchaser showing on its face that sale was made after limitations in Code 1906, sections 3093, 3097 (Hemingway's Code, sections 2457, 2461), had run on original indebtedness, held valid, where creditor had within six months entered marginal reference showing original note had been extended.

HON. J. I. STURDIVANT, Judge.

APPEAL from circuit court of Oktibbeha county, HON. J. I. STURDIVANT, Judge.

Action by D. A. Burgin against C. O. McBride and others, wherein one Palmer and other intervened. Judgment for plaintiff, and defendants appeal. Affirmed.

Judgment affirmed.

Daniel & Greene, for appellants.

The only questions before this court are questions of law and the construction of our statutes. The note secured by the trust deed foreclosed was due December 1, 1918. The property was foreclosed December 15, 1924, fifteen days after the note and deed of trust were barred by our statutes of limitation.

Is it possible that section 2297, Hemingway's Code, can be so construed as to make it retroactive? The trustee's deed recites upon its face that it was foreclosed because of the nonpayment of a note described in the trust deed maturing December 1, 1918. The conveyances to appellant were made with that record of the foreclosure. Now after suit had been filed for possession of the land foreclosed, could life be blown into that foreclosure by having the record recite an extension?

The notation made on the margin of the trust deed record on May 22, 1925, could certainly not breathe life into a foreclosure made on December 15, the preceding year. When appellee deraigned title on May 12, 1925, he had not at that time made any notation on the margin of the record about renewal.

Again, we say that no matter how the marginal notation might affect the right of appellee and his trustee to foreclose properly under the renewal note, this foreclosure was had under the barred note. The courts have universally held that statutes permitting the foreclosure of property must be strictly construed and rigidly followed. Jones v. Salmon, 91 So. 199.

B. F. Bell, for appellee.

From our view of the case, the whole issue depends upon the settlement of one proposition; that is, whether Burgin's claim was barred by the statute of limitation at the time the trustee's deed was executed to him on December 15, 1924, rendering the same void? We contend with confidence and sincerity that this indebtedness was never barred by the statute of limitation because some two years and five months prior to the operation of the statute, while the original note was in full force and effect, the renewal note was executed by Palmer, which extended the life of this indebtedness until August 31, 1928. When D. T. Palmer undertook to convey away the land covered by his deed of trust to Burgin, he knew that this renewal note was outstanding and that the very land he conveyed was encumbered for the amount of the value of his renewal note.

However, appellants attack the validity of Burgin's trustee's deed on the ground that the marginal entry appertaining to the renewal note was not made until so many years, months and days had transpired from the date of said note. We submit that under section 2796, Code of 1906 (section 2297, Hemingway's Code) there is no time limit within which such entries may be made except "within six months after such remedy is barred."

At the time the appellants bought this property from D. T. Palmer, notwithstanding the fact that the trustee's deed to Burgin was a matter of record, and even though the trust deed "appeared on the face of the record to be barred by the statute of limitation," as a matter of fact, it was not barred, and under the statute quoted above, he had until May 31, 1925, in which to enter the fact of the renewal on the margin of the record. This statute has been construed repeatedly and nothing contrary to this contention has ever been held by this court. Klaus v. Moore, 77 Miss. 701; Bank of Lexington v. Cooper, 115 Miss. 782; Smith v. Childress, 119 Miss. 20.

The marginal entry upon the face of the record is all that the law requires. The record of the trust deed is what constitutes notice, and not the trust deed itself. Hence, there is no reason why the trust deed itself should bear such entry.

OPINION

MCGOWEN, J.

This is an action of ejectment brought by D. A. Burgin against C. O. McBride et al. for the possession of lands in Oktibbeha county. The ejectment suit was filed against the tenants, and the alleged landlords, Palmer, Greene, and Daniel were permitted to file pleas and come in as parties. The case was tried before the court, and from a judgment in favor of the plaintiff the defendants appeal.

D. T. Palmer, not a party to this suit, on August 24, 1918, being the owner of the lands involved, gave D. A. Burgin a trust deed thereon to secure his promissory note for four hundred seventy-one dollars and thirty-six cents, due December 1, 1918; both the trust deed and the note being signed by D. T. Palmer and his wife. The note was described in the trust deed. On December 15, 1924, six years and fifteen days after the date of maturity of the note, B. F. Bell, the trustee in said trust deed, conveyed the land after advertising and selling the same to the appellee, D. A. Burgin, the mortgagee in the trust deed, and in this deed which Bell, trustee, executed in favor of Burgin, the purchaser, there was specific reference to the certain promissory note described in the trust deed contemporaneously therewith, and the further statement that default has been made in the payment of the indebtedness therein secured.

On July 1, 1922, D. T. Palmer executed a new note for six hundred six dollars and forty six cents, due December 1, 1922, and the note contained this recitation:

"This note is in renewal of note due D. A. Burgin December 1, 1918, and is secured by trust deed of record in Deed Book 142 section 488, Oktibbeha county," etc.

There was nothing in the trustee's deed to indicate that this renewal note of July 1, 1922, was in existence, and the trustee's deed was promptly recorded.

In the chancery clerk's office the following marginal reference or notice was entered in said Deed Book 142, at page 488, on which page the trust deed from Palmer to Burgin was recorded:

"The within note and trust deed securing same has been...